Accountability of State actors at the international level

United Nations Member States acknowledged in the Millennium Declaration that “in addition to our separate responsibilities to our individual societies, we have a collective responsibility to uphold the principles of human dignity, equality and equity at the global level.” They were reaffirming a principle articulated more than 50 years earlier in the Universal Declaration

WHO WILL BE ACCOUNTABLE? Human Rights and the Post-2015 Development Agenda 21 of Human Rights that “everyone is entitled to

a social and international order” necessary to realize human rights.

In various development forums, States are increasingly developing consensus around the notion of mutual accountability, described at the Busan High Level Forum on Aid Effectiveness as the need for “accountability to the intended beneficiaries of our cooperation, as well as to our respective citizens, organizations, constituents and shareholders.”⁷² Development cooperation (bilateral and multilateral) is one of the most direct ways in which States affect development processes and outcomes beyond their borders. Donor countries provide essential funding and support to low- and middle-income countries. Conditionality, tied aid, corruption, inefficient delivery and failures of capacity or commitment often hamper the effectiveness of aid programmes. The emergence of new donors, the global policy impact of nascent governance

forums such as the Group of 20⁷³ and increasing South-South cooperation in ODA may accentuate some of these challenges and relieve others.

States may advance human rights or Millennium Development Goals abroad through other forms of international assistance, such as providing support in other countries to civil society, parliaments, judiciaries, the media, and to victims and survivors of human rights violations, that strengthen governance and accountability or provide access to justice and redress.

As acknowledged in the Millennium Declaration and Goal 8, States exert significant extraterritorial influence in other ways, particularly via their bilateral and multilateral trade, investment and financial policies. Increasingly, these limit the autonomy of national Governments, creating some opportunities to realize human rights and development commitments but removing others (see box 2). Moreover, a State’s domestic conduct may have extraterritorial effects in other

Box 2. Human rights risks in trade and investment agreements An increasing proportion of trade and investment

takes place within the framework of preferential trade agreements (which comprise customs unions and regional and bilateral trade agreements) and bilateral investment treaties. On average, each member of the World Trade Organization (WTO) has 13 preferential trade agreements in force, covering more than 50 per cent of global trade (and up to 90 per cent of the trade of some WTO members). There are now almost 2,500 bilateral investment treaties in force, roughly 1,500 of which were signed in the past 10 years.

Trade liberalization and increased foreign investment may contribute greatly to development.

However, human rights violations can also occur.

For example, preferential trade agreements may impose more onerous obligations on developing countries than those covered by relevant WTO agreements. A number of preferential trade agreements contain stronger intellectual property protections on essential medicines than those contained in the Agreement on Trade-Related Intellectual Property Rights (TRIPS), which can put life-saving “generic” antiretroviral treatment out of reach of the poorest.

Bilateral investment treaties often contain stabilization clauses designed to guarantee a predictable regulatory environment for foreign investors. Through international investment arbitration, foreign companies can sue States for appropriation (direct or indirect) of their property. However, in 2010 Philip Morris filed an arbitration claim in the International Centre for Settlement of Investment Disputes, alleging that Uruguay’s legislation mandating health warnings on tobacco packaging (intended to protect the rights to life and health of the Uruguayan population) violated the Switzerland-Uruguay bilateral investment treaty. The Canadian and Australian Governments have faced similar pressures, which in the former case led to watered-down health warnings. In other cases foreign investors’ property interests have clashed with laws to ensure environmental protection, affordable water supply and affirmative action for disadvantaged sectors of the population.

Source: OHCHR, Fact Sheet on Human Rights, Trade and Investment (forthcoming).

countries. A Government may take domestic measures to mitigate the impact of a financial crisis which may harm other economies. It may be indirectly responsible for harms abroad if it fails to sanction abuses committed by an international corporation domiciled in its country, or fails to regulate local industries or markets (for example, financial services) with an impact beyond the State’s own borders.

One of the most persistent accountability deficits in the current MDG framework has been the difficulty of holding industrialized countries to account with regard to their commitments to the global partnership for development. The Millennium Declaration calls on industrialized countries to end duties and quotas on all exports from least developed countries; to implement robust programmes of debt relief for heavily indebted poor countries; to cancel all the official bilateral debts of those countries if they act seriously to reduce poverty; and to grant more generous development assistance, especially to countries that use their own resources to reduce poverty.

In contrast to Goals 1-7, Goal 8’s lack of clear, quantitative and time-bound targets and indicators has curtailed the possibility of monitoring and holding Governments accountable for concrete legal and policy changes necessary to meet this Goal. Serious shortcomings are evident in all areas of Goal 8:

for example, the volume of ODA fell 3 per cent in 2011; trade restrictions by the Group of 20 affect 3 per cent of world trade and the Doha (“development”) round of trade talks remains at a standstill; OECD countries’ agricultural subsidies rose in 2011, reaching 0.95 per cent of total gross domestic product (GDP); debt sustainability frameworks fail to acknowledge the human rights obligations of creditors and debtors; and an increasing number of bilateral and regional free trade agreements include intellectual property provisions that put essential medicines out of reach of the poor.⁷⁴ Yet the failure to agree metrics of compliance under this particular Goal has rendered such shortfalls less visible in periodic MDG reviews of progress.

Just as development policymakers are currently seeking to give deeper meaning to the transnational dimensions of mutual

accountability, so too has the human rights community grappled with the need for

accountability beyond State borders. While legal norms with regard to States’ transnational human rights obligations are still emerging, holding States accountable for the range of human rights impact their policies may have beyond their borders is becoming an increasingly important dimension of global governance that the post-2015 needs to address.

While in most circumstances States remain the central duty bearer in human rights law,⁷⁵ it is generally accepted that States also have a baseline obligation to “do no harm” (or to respect) human rights in other countries and, within certain parameters, also to “protect”

human rights extraterritorially (which might include, for example, regulating to ensure that transnational corporations do not violate human rights in third countries). States also have a general duty under international law to cooperate towards the realization of human rights in other countries.⁷⁶ There may also be circumstances where States have a complementary (and sometimes concurrent) legal obligation to “fulfil”, or contribute positively, to the realization of human rights in other countries.

The United Nations high-level task force on the implementation of the right to development has made a significant contribution to the question of accountability of States for their obligations of international cooperation. In response to the accountability shortfalls of Goal 8, the high-level task force recently developed a practical and comprehensive set of operational criteria and illustrative quantitative indicators⁷⁷ to help policymakers and development practitioners measure and assess whether Government

conduct is contributing to—or contravening—their domestic and extraterritorial (“internal, external and collective”) responsibilities under the 1986 United Nations Declaration on the Right to Development. Many of these proposed indicators directly refer to human rights principles, such as whether tax revenues mobilize the maximum available resources for the fulfilment of human rights and the existence of national regulation to guard against extraterritorial infringement of human rights by business enterprises.

WHO WILL BE ACCOUNTABLE? Human Rights and the Post-2015 Development Agenda 23 While the application of the right to development

criteria is still in its early stages, the framework advances the definition of a clear set of common, but differentiated standards and responsibilities of duty bearers. It seeks to provide the foundation for a multidimensional monitoring system which can effectively make recipient and donor countries more responsible, answerable and ultimately accountable for their conduct in relation to development cooperation, towards the individuals and communities abroad whose rights they claim to uphold.

As discussed in chapter IV, some Governments are beginning to recognize that they have an extraterritorial obligation to provide international assistance and cooperation and to contribute to the fulfilment of economic and social rights beyond their borders. In many domains, there is broad agreement that wealthier States should make a greater contribution to the cost of international policies that are of global benefit. In some instances, this understanding is articulated in international political declarations such as the Millennium Development Goals, and targets such as the international aid target of 0.7 per cent of GDP, and the agreement of States that they have a common but differentiated responsibility to finance the cost of policies to address climate change.

However, the sources and boundaries of legal duties beyond borders are still contested (typically by wealthier countries), and Governments are politically incentivized to prioritize the immediate interests of their own inhabitants. The post-2015 framework should spur Governments to assume responsibility for the external human rights impact of their policies, and create mechanisms through which they can respond to concerns of affected countries and communities.

As discussed in the previous chapter, the third element of accountability—enforceability (punishment, sanctions and redress)—will in most cases be a more effective engine of human rights accountability at national and local levels, where norms are fleshed out in comparatively greater detail and enjoy more widespread acceptance in practice. Enforcement is

generally better understood as a backstopping mechanism. The same is true at the international level. Nevertheless, it is important at

international as well as national level to make sure that sanctions are enforceable in cases where States (or non-State actors) are clearly responsible for human rights abuses abroad. In a very small category of cases, direct sanctions are already possible (if acts of genocide or crimes against humanity can be proved, for

© UN Photo / Mark Garten

example). Elsewhere, in specific domains (such as trade and investment law), States are able to bring allegations of abusive or unfair conduct by other States before a tribunal. These procedures will need to be reconciled more effectively with international human rights treaty standards, as part of efforts to create an international order in which States and other international actors are adequately accountable.

The recognition by many Governments of the critical importance of international cooperation is not adequately matched by a shared sense of obligation, but this is clearly the direction in which the international community needs to move. The immediate focus must be to strengthen international State consent to methods of sharing obligations that can be applied pragmatically to issues of global importance. This implies giving attention to transparency, the development of fair rules and procedures for applying them.

Global enforcement mechanisms cannot work unless individual States can objectively assess their own and other States’ responsibilities and report on them according to agreed criteria that are considered to be practical and just.

This does not mean deferring the quest for more effective enforcement mechanisms. On the contrary, consensual practices of responsibility and answerability should evolve in parallel, reinforcing demands for effective enforcement.